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Nature of Family Law

Nature of Family Law






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    Nature of Family Law Nature of Family Law Presentation Transcript

    • Family Law Part one, option 1 - nature of family lawTerm 4/Term 1 2011/12Monday, 21 November 2011 1
    • Family law: themes and challenges • The role of the law in encouraging cooperation and resolving conflict in regard to family • Issues of compliance and non-compliance • Changes to family law as a response to changing values in the community • The role of law reform in achieving just outcomes for family members and society • The effectiveness of legal and non-legal responses in achieving just outcomes for family members. Very important when developing essay questionsMonday, 21 November 2011 2
    • The concept of family law • Wide ranging area of law which covers care of children, property allocation when a marriage breaks down and domestic violence etc • Main Function of the Family: Care and Protection of its members - Parental Responsibility • Family Law Act 1975 (Cth) - defines a family as ‘the natural and fundamental group unit of society’Monday, 21 November 2011 3
    • Main Syllabus Points Hint: Great to use this in the intro of an essayMonday, 21 November 2011 4
    • Traditional views Modern society Single-Parent Family Nuclear Married Family ( Mother, Father & Children) Blended Family ‘Children should be seen but not De Facto Relationship heard’ Same-Sex Relationship Couple should not live Extended family together unless married Aboriginal and Torres Strait Islander Customary Marriage Hint: These family arrangements are linked to Family Law ReformMonday, 21 November 2011 5
    • Traditional familyMonday, 21 November 2011 6
    • Discussion Time: • Why is it difficult to define a family? • In your opinion, what are the reasons for alternative family arrangements in modern day Australia? Hint: Families include Father, Mother and Children according to the law. However, due to changes of the modern family, this includes other members who live togetherMonday, 21 November 2011 7
    • Legal requirements of marriage • Marriage is ‘the union of a man and a woman to the exclusion of all others’ Marriage Act 1961 (Cth) • Based on the English Case of Lord Penzance: Hyde V Hyde and Woodmansee (1866) ‘voluntary union for life of one man and one woman, to the exclusion of all others’ • Marriage is voluntary, is for life (however having legal right to divorce), must be different sexes and polygamy is illegal.Monday, 21 November 2011 8
    • The Marriage Act (Cth) 1961 • Gender • States that marriage involves only the union of man and woman (s5) • Marriageable age • May marry at 18, if between 16 to 18 you must apply to a judge or magistrate (s12) for marriage authorisation. Only exceptional cases will be approved • Prohibited Relationships (consanguinity) • Cannot marry a blood relative (ancestor, descendant, sibling) including adopted persons • Used to include Affinity Relationships (Through Marriage – Uncle, Niece etc) however in 1975 this was abolishedMonday, 21 November 2011 9
    • • Notice of Marriage • Couples must complete a notice of intended marriage form authorised by a marriage celebrant. Must include proof of age and whether they have been married previously • Requirements of a valid marriage ceremony • Authorised Marriage celebrant must perform the ceremony and there must be two over 18 witnesses • Issue of a marriage certificate which is signed by the husband, wife and two witnesses • One copy of the certificate must be lodged within 14 daysMonday, 21 November 2011 10
    • Void Marriages • Same- sex • Consent was not given by one individual • One or both of the individuals was married previously • One or both of the individuals were too young • Too closely related • If the court decides the marriage to be invalid, in the eyes of the law it is nullified (s21)Monday, 21 November 2011 11
    • Case Law: • In the Marriage of S • 15yr old that didn’t give consent for marriage • Corbett v Corbett 1970 and Re Kevin (2001) • Marriage between two women declared valid • Di Mento v Visalli (1973) • Forced into Marriage. Consent was not given Hint: You only need to use a small amount of information from the cases you use in Extended Responses. Use them to build your argument, not dominate itMonday, 21 November 2011 12
    • Legal Consequences and Responsibilities of Marriage • Mutual duties of husband and Wife • The law does not set out partners duties and responsibilities. It does intervene where the marriage breaks down. • Consortium – care and affection for each other • Traditional belief – Unito Caro ‘the man and wife are one and that one is the husband’ • Maintenance • Financial payment made by one spouse to contribute to the care and welfare of other spouse and/or children • Spousal Maintenance is not automatic and may only be granted for a limited periodMonday, 21 November 2011 13
    • • Property Rights • Marital home – can be purchased in equal or unequal shares • Ownership is based upon who paid for it • Contracts • Contracts are not altered by marriage • Spouses cannot be held responsible for each others debts Hint: Generally the law doesn’t intervene in marriage lifeMonday, 21 November 2011 14
    • • Wills • A document that states how a person intends to have his/her property distributed after death • Intestate – Person who does not leave a will • Executor – person who administers the estate (property) • Family members can apply for a family provision order to be included in the WillMonday, 21 November 2011 15
    • Case Law: • Ex Parte Willis (1997) • Marriage under the age of 18 case • Eliades v. Eliades (1981) • Couples are expected to help maintain each other Hint: You only need to use a small amount of information from the cases you use in Extended Responses. Use them to build your argument, not dominate itMonday, 21 November 2011 16
    • Alternative family relationshipsMonday, 21 November 2011 17
    • 1. Aboriginal and Torres Strait Islander Customary Law Marriage • Children can be betrothed and elders can arrange marriages • Generally, ATSI marriages are not recognised under the Marriage Act 1961 (Cth) • However, protection is given to ATSI children under certain arrangementsMonday, 21 November 2011 18
    • 2. Single-Parent Family • 15% of families are single parent in Australia • Increasing due to high rates of divorce, changes in social attitudes and greater financial dependency of womenMonday, 21 November 2011 19
    • 3. Blended Family • Created when a parent remarries • 1/3 of all marriages in 2008 were marrying for the second time • Many divorced couples choose to cohabit • (live together) rather then remarry • Step parents are not responsible for the maintenance of a partners child. They can adopt a step child overtimeMonday, 21 November 2011 20
    • 4. De-Facto Relationships • Defined in the Family Law Act 1975 (Cth) as: • Partners who are not legally married to each other • Have a relationship living on a genuine domestic basis • A relationship that is generally 2 years, unless there is children involvedMonday, 21 November 2011 21
    • 5. Same-Sex Relationships • Recognised under the Property (relationships) Act 1984. giving same legal standing as de facto relationships • Currently, Same-sex marriages are not allowed in Australia, but pressure on federal government may change this overtimeMonday, 21 November 2011 22
    • 6. Polygamous Marriage • Illegal in Australia • Overseas polygamous marriage may be deemed legal in the best interests of the childMonday, 21 November 2011 23
    • Polygamy Around the WorldMonday, 21 November 2011 24
    • Theme and Challenge Time: Changes to family law as a response to changing values in the community • Views on different family arrangements • Society views towards same-sex marriages • Increase in women’s financial dependency and supporting children • Children are not owned but cared and protected by both parents • Birth technologies becoming popularMonday, 21 November 2011 25
    • Legal rights and obligations of parents and children • The rights of the child are paramount as they are considered most vulnerable • Most laws relating to care and protection of children are at a state levelMonday, 21 November 2011 26
    • Derived from International Law • Protection of children under CROC • CROC is used by courts to develop common law regarding protection of children • Many principles of CROC are embedded into federal/state legislation • Article 3 – children’s best interest should be primary consideration • Article 12 – child has a right to express opinions and be heard in legal proceedings • Preamble – importance of child’s cultural background • Article 2 – protected against discrimination •Monday, 21 November 2011 27
    • Family Law Act 1975 (Cth) • Paramountcy of the Child • Part VII section 60b ‘ best interests of the child are taken into consideration for children’s orders’: • Involvement of both parents • Protection from physical and psychological harm • Adequate and proper parentingMonday, 21 November 2011 28
    • Responsibilities of Parents • Providing adequate food and shelter • Providing access to education • Consenting to medical treatment • Providing discipline • Protecting children from harm and not be exposed to illegal activities • Ensuring others are not harmed by their childMonday, 21 November 2011 29
    • Parental Neglect - NSW • Under State Law parents may be criminally charged for neglect • Children and Young Persons (Care and Protection) Act 1998 (NSW), carries fines up to $22000 • Department of Community Services intervenes, which sends a caseworker and can move the matter to the children’s court of NSW for an order • Parents can be held liable in tort for damage or injury that their child causesMonday, 21 November 2011 30
    • Smacking childrenMonday, 21 November 2011 31
    • • Education • Protected under Education Act 1900 (NSW) and CROC • Failure to provide the child access to an education is a criminal offence • Discipline • Parents have the right to discipline their child by using physical force but it must be reasonable • What is reasonable may vary from culture to culture • Assault includes striking the head or neck, shaking and striking with a closed fistMonday, 21 November 2011 32
    • Parents responsible for truancyMonday, 21 November 2011 33
    • • Autonomy of Children • Children are considered as not having developed cognitive abilities to make informed decisions • Development of law regarding children and young persons has increased some freedoms and improved rights • Ex-nuptial Children (outside marriage) • In the past had no legal status • Status of Children Act 1996 (NSW)Monday, 21 November 2011 34
    • Question Time: • 1. Evaluate the influence of the UN CROC on Family Law • 2. Explain the concept of ‘best interests of the child’ as elaborated by the Family Law Act 1975 (Cth) • 3. Explain the concept of ‘Parental Responsibility’ giving examples Hint: These 3 questions are important to major themes in family lawMonday, 21 November 2011 35
    • Adoption • Process of transferring parent rights and responsibilities from biological parents to adoptive parentsMonday, 21 November 2011 36
    • Adoption Act 2000 (NSW) • Both parents must give consent to give up child (If single parent, mother gives consent while notifying father having 14 days to respond) • Children aged over 12 yrs must consent to their own adoption • Birth mother cannot consent within 3 days from birth • If birth parents give consent, a 30 day cooling off period will applyMonday, 21 November 2011 37
    • Adoption lawMonday, 21 November 2011 38
    • Who can Adopt? • Married couples and de facto relationships of more than 3 years • Individuals who are not in a relationship • Over 21 years but under 51 years of age • Males – 18 years older than the child • Females – 16 years older than the child • ‘Good Repute’ and be ‘fit and proper’Monday, 21 November 2011 39
    • Adoption in australiaMonday, 21 November 2011 40
    • Adoption Approved • New birth certificate issued • Adoptive parents now have legal responsibility • Child has the right to inherit the estate of their adoptive parentsMonday, 21 November 2011 41
    • Adoption Overseas • Child’s culture needs to be preserved • In NSW, prospective parents apply through DOCS • Child must meet migration standards otherwise department of immigration and citizenship may be refusedMonday, 21 November 2011 42
    • Accessing Information on Biological Parents • The Adoption Act 2000 (NSW) allows relinquishing parents and adopted children the right to request information from DOCS • Adopted children over 18 and biological parents may apply for a ‘supply authority’ (find information) • On the other hand, parents and children who do not want to be contacted can lodge a ‘contact veto’. Fines apply if not followed correctlyMonday, 21 November 2011 43